What’s happening in Pakistan: a very brief guide for lawyers
This sums it up quite well.
The lawyers’ protest in Pakistan
It’s brilliant to see that lawyers are leading the protests against what Dawn newspaper has called Musharraf’s “second coup” in Pakistan. The confrontation began (as this BBC story explains) earlier this year when Musharraf tried to remove the country’s chief justice; now he’s suspended the constitution in anticipation of a Supreme Court ruling likely to rule out his standing for President while still head of the army (and indeed rule his http://www.magliettedacalcioit.com Presidency unlawful for the last two years). It’s not an emergency at all, as he claims; at least, the only emergency relates to his grip on power. This is simply the unjustified imposition of martial law for self-serving political reasons. Broadcasters are silenced, and opponents of the regime being detained.
Time for lawyers all over the world to support their Pakistani colleagues fighting for constitutionalism, democracy and the rule of law.
And finally on control orders…
In the E case their Lordships had no difficulty in agreeing that a curfew of 12 hours a day, combined with noticeably less restrictive conditions than in the JJ case (E lives with his wife and children, who he can pick up from school, can sit in his garden and can go http://www.magliettedacalcioit.com anywhere in his 12 hours of freedom) can lawfully be imposed under a control order.
They also agreed that the Home Secretary need only consult the police about possible prosecution before making an order; she needn’t be satisfied there is no realistic prospect of a conviction. An easy case, this.
So, 12 hours curfew plus some restrictions, lawful; 18 hours plus very tight restrictions, unlawful. Jacqui Smith will I think need to tread carefully. If she wants to impose 16 hours without risk of a successful challenge, I think she needs to have relatively relaxed restrictions the rest of the time, like in E’s case. If she wants tight restrictions at all times, she probably needs to keep the curfew Cheap Jerseys down to 12 or 14 hours. And of course she’ll have difficulty getting an order upheld at all if she wants to rely solely or mainly on closed evidence.
The system’s survived; but as I said earlier today, it’s dented.
Control orders continued: Jacqui Smith in an impossible position
My lengthy post on the JJ case explained how the Home Secretary has now been limited to imposing curfews of 16 hours (or less) under her control order regime; I thought I’d better post again though, on the perhaps even bigger dent she’s suffered from the MB case the Lords ruled on at the same time.
The meat of this case was whether it’s a breach of the article 6 right to a fair hearing, if a control order is confirmed by a court on the basis of secret evidence not disclosed to the subject of the order or his lawyers. By four Law Lords to one, this time, the Home Secretary lost.
Again, Lord Hoffmann doughtily stood by her, arguing that, if the admission of secret evidence (for example from the Security Service) which the judge agrees http://www.magliettedacalcioit.com cannot be fully disclosed for national security reasons is in breach of article 6, the Home Secretary is handed and impossible dilemma: she must risk national security either by disclosing the material, or by choosing to present a weaker justification for her order. Relying on the Chahal case, he sees the “special advocate” system that applies in control order cases (a special advocate is appointed by the court to respond to the secret evidence without communicating it to the controlee) as a complete answer to the dilemma. A fair hearing is, in his view, guaranteed.
This time, though, Hoffmann’s on his own. All the other Law Lords agree with Lord Bingham, that article 6 is breached where a control order cannot be justified on the basis of open evidence, but is mainly founded on secret, undisclosed evidence. So I’m afraid Jacqui Smith will be in precisely that impossible position Lord Hoffmann feared.
Lord Bingham initially wanted to declare the provisions of the Schedule to the Prevention of Terrorism Act 2005 incompatible with article 6, but in the end decided not to disagree with Lady Hale and the others, that the provisions can be read compatibly with article 6 so the cases should be remitted to the Administrative Court for the judge to rule on what if any closed evidence can fairly be relied on, and what further conditions or safeguards can be applied in order to achieve fairness.
It’s very interesting, this ruling on interpretation under section 3 of the Human Rights Act. Lady Hale is surely right to say that if a provision can be read Cheap NFL Jerseys compatibly, then that’s what the courts must do. There’s no room, as Lord Bingham suggested initially, to choose not to do so on policy grounds. But I wonder whether her approach can really be reconciled with the leading case on interpretation under the Human Rights Act, Ghaidan v Godin-Mendoza. Can’t you argue that the closed evidence and special advocate system a fundamental procedural feature at least of the control order regime? If so then the courts should not read them differently from the way Parliament intended. I’m not sure about this – maybe closed evidence is a fundamental feature, or maybe you could say procedural provisions like this could never be a fundamental feature of an underlying policy. But I do think the Lords should have addressed the “fundamental feature” issue – failure to do so risks taking us back to the days of R v A, before Re S first set the outer limits to interpretation under section 3. Ghaidan has changed a lot since then, but the outer limits still remain.
The control order cases: liberty’s a matter of pure opinion
On Wednesday the Lords gave their judgment in the appeals of JJ and others, MB and AF, and E, against the making of control orders against them under the Prevention of Terrorism Act 2005. Jacqui Smith may be putting a brave face on it, but these rulings dent the control order regime considerably.
The big question in the JJ case was whether six of the control orders were so restrictive as to amount to a “deprivation of liberty” for the purposes of the article 5 Convention right to liberty and security of person. If so, then the orders were http://www.magliettedacalcioit.com necessarily flawed – because the government could not (and didn’t even try to) argue that any of the limited circumstances applied in which, under article 5, restrictions on liberty are permitted. The lawfulness of the orders simply turned, therefore, on whether they deprived the subjects of liberty.
In a sense Jacqui Smith was unlucky on this: she lost by three Law Lords to two. All the Lords focused on the old European Court of Human Rights ruling in Guzzardi, still the most important Strasbourg case on when restrictions short of actual imprisonment – undoubtedly the paradigm case article 5 is meant to deal with – may still be so tight as to deprive someone of his liberty. In paragraph 93 of that ruling, the ECtHR had said:
The difference between deprivation of and restriction upon liberty is… merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5… depends.
So their Lordships delivered their opinions.
Lord Bingham set out the detail of one of the orders – the subject was confined to a one bedroom flat for 18 hours a day, only permitted adult visitors who’d been approved by the Home Office following background checks, only allowed pre-arranged meetings with approved people, obliged to wear an Cheap Jerseys electronic tag, restricted to a limited area even in his six hours out, and banned from using the internet. The flat could be searched at any time. Pretty clearly, it seems to me, a Guzzardi-type case: not exactly imprisonment, perhaps, but very close to it. Bingham compared it to being in an open prison, and concluded that there was a deprivation of liberty. For what my pure opinion is worth, I agree. And so did Lady Hale.
Lords Hoffmann and Carswell didn’t, though – hard men, these pair. They preferred a very narrow conception of deprivation of liberty, seeing Guzzardi as an outlying, borderline case and contrasting the right to liberty with the right to free movement under article 2 of Protocol 4. They preferred to keep the Guzzardi approach within strict limits, and I detect even an implication in their speeches that the majority in Strasbourg was wrong and that the dissenting judgment of Sir Gerald Fitzmaurice is preferable.
It’s Lord Brown who scores the winner, and I can’t help adding that I think he played a blinder in his speech. While correctly focusing on Guzzardi, he makes the important point that that ruling made clear that the borderline between liberty and free movement would shift – in accordance with the Strasbourg concept of the Convention as a “living instrument” – according to changing legal standards. He not only concludes that 18 hours is too much, but unlike the other judges goes on to give an indication that he thinks 16 hours is the maximum that would be lawful; while shorter curfews would be compatible with article 5. I think he was right to give some guidance to ministers and the public about where he thinks the cut-off should be. My only difficulty with his approach is that he focuses so much on the curfew alone rather than on the intensity of the other restrictions; but perhaps that’s inevitable if any kind of helpful indication is to be given. With luck, his speech offers some of that “firmness of accuracy” that Charles Clarke wanted, so that Jacqui Smith needn’t flail around quite so much.
One word for Lord Hoffmann, though: I think he was right, and the other Law Lords wrong, on the correct remedy to apply in this case. Lord Bingham and the other concluded that, since the Home Secretary had no power to make control orders amounting to a deprivation of liberty, the orders must be quashed as having been a nullity from the start. They saw the court as being unable to exercise its powers under section 3(12) of the Act to quash one or more of the obligations in it, or to direct the Home Secretary to modify it. That can’t be right; as Lord Hoffmann rightly said, since section 3(12) only applies when a control order is unlawful, the other Law Lords have simply written subsection (12)(b) and (c) out of the statute.
So, Jacqui Smith loses the right to impose 18 hour curfews; though she’ll try relying on Lord Brown’s pure opinion to get away with 16 hours in future. My advice? She’d better keep below that, at 12 or 14 hours, if she also wants to keep all the other tight restrictions she’s had on these people.
Palacios de la Villa: EC law means never having to say sorry
In its judgment today in case C-411/05 Palacios de la Villa , the ECJ has ruled that Directive 2000/78, which outlaws discrimination on grounds of age, does not prevent member states from legislating so as to permit compulsory retirement at 65 in certain circumstances – at least in the context of collective agreements between employers and unions. I think that’s a bit disappointing: it looks as though the ECJ will take agenerous approach to interpreting article 6.1 of the Directive, allowing member states to permit all manner of discrimination on the vague basis that this is justified in terms of “legitimate employment policy”. Oh, well.
The other interesting thing about the judgment is the way the court has deliberately, and deplorably in my view, skated or skirted round the problem caused by case C-144/04 Mangold, which had suggested age discrimination was prohibited as a general principle of EC law independently of Directive 200/78, so that a member state could unlawfully discriminate even before time for implementing the Directive had expired (at the end of 2006, in relation to age discrimination).
That was an astonishing proposition, and surely had to be wrong. Fortunately you can make sense of Mangold in another way: the court ruled in any event that what Germany had done was legislate after the Directive was in force, during the period allowed for implementation, ina way which undemrined the purpose of the legislation – it’s uncontroversial to argue that member states act unlawfully if they do that.
Advocate General Mazak, in his opinion, took on Mangold, and said it was wrong. He also concluded that the Directive didn’t apply (though admittedly not because the dismissal of Mr. Palacios de la Villa took place before implementation fo the Directive was due). But the court has sneaked out of facing up to Mangold. It has ignored the time problem, preferring simply to rule in the abstract that the Directive applies to the legislation in question; it lets the national court off the tricky hook of having to decide whether the Directive applies in the particular case, by ruling that the Directive permits the legislation.
Pretty pathetic, if you ask me.
Green ink (and a bit of sense) on the Charter
The Times today has a few letters responding to the government and Lord Wedderburn on the Reform Treaty.
Robert Gutfreund Walmsley’s letter makes depressing eurosceptic reading. What does he mean by the dual nationality provision? There?s nothing new in the Reform Treaty about nationality. He must mean the existing articles 17 to 21 of the European Community Treaty, which will be replicated with very slight (and insignificant) amendments by article 2(34) of the Reform Treaty.
I’m almost too dispirited to go on: but the existing opt-ins to justice and home affairs matters, which will be carried on and extended by the Reform Treaty, and to the Euro, which will also be carried on, have not yet been challenged – so there is no reason to believe they will be in future. Nor, since others like Ireland, Denmark and Poland either already share opt-outs and opt-ins with us, or want to, is it at all likely that 26 other countries would be lined up against us if ever there were such a challenge.
I’m afraid Mr. Walmsley lives in a Bill Cash world in which every word in every European proposal has been primed and laid by Guy Fawkes, in conspiracy with Napoleon.
Not that I’m against every type of euroscepticism: I’m not. Andrew Gardner’s letter shows why it’s right to be wary about what the government says it’s up to when signing up to treaties.
Denis McShane’s letter, finally, which is a direct response to Lord Wedderburn: I agree with him that the Charter of Fundamental Rights will not change employment law or practice in any member state. It won’t, and was never going to. That’s why it’s crazy that the government, egged on by fantasies peddled by the CBI, thought the see-through fig-leaf of a protocol was needed for purely political, presentational reasons.
Austin and Saxby v Metropolitan Police
The Court of Appeal has in effect upheld as lawful the actions of the police during the May Day demo in Oxford Circus in central London in 2001. You may remember that the police in effect trapped several thousand people in Oxford Circus for a number of hours after they, or most of them, arrived for an unannouced, unlawful demonstration. The police justifed their actions in terms of their fears of violence and damage to property.
In dismissing the Appeal, the judges have upheld Tugendhat J’s ruling at first instance, although their reasoning was somewhat different. In particular, they found that the containment of the demonstrators was not a deprivation of liberty for the pruposes of the Article 5 Convention right, but a mere restriction on freedom of movement, as in the well-known ruling of the ECtHR in Guzzardi. At first blush that seems slightly odd if they agreed with Tugendhat J, as they did (see para. 12 of the Court of Appeal’s judgment), that the containment amounted to imprisonment for the purposes of domestic tort law. It might make more sense if I reflect on it a bit.
Branislav Kostic’s bonkers bequest
Both the mainstream media and leading blogs have picked up on Henderson J’s judgment in the Chancery Division of the High Court, ruling invalid Branislav Kostic’s will, in which he left millions of pounds to the Conservative Party. Here’s the judgment.
The judge’s ruling, put into the language of the 19th century case of Banks v Goodfellow which laid down the test for testamentary capacity, was that an insane delusion influenced his will.
Which reminds me of an interesting podcast in which Lord Owen suggests that some leaders like Margaret Thatcher in her final Kostic phase, or Tony Blair, really do suffer from mental illness.
The Kostic case is also a bit interesting as an example of a case involving the Attorney General in her public interest role independent of government. A charity must have been involved somehow.